AAA Commercial Arbitration Request for Leave to Submit Dispositive Motion

Summary

Dispositive motions can be an important substantive and strategic tool in arbitration. This template is a request for leave to submit a dispositive motion you can use in disputes under the American Arbitration Association (AAA) Commercial Arbitration Rules and Mediation Procedures (AAA Rules). This template includes practical guidance, drafting notes, and optional clauses. The AAA does not have specific requirements for the form of the request for leave. You can use the case caption and style it as a motion, or otherwise simply send a letter to the AAA. As with other procedural matters, you should first check the arbitration agreement which may contain express language regarding dispositive motions. Prior to filing the request for leave you may also consult with opposing counsel in effort to obtain the other side consent for the filing of the motion. Note that the standard for granting a request to file a dispositive motion is a showing by the moving party that "the motion is likely to succeed and dispose of or narrow the issues in the case." AAA Commercial Arbitration Rules and Mediation Procedures Rules R-34(a). In showing that the motion is likely to succeed, many counsel rely on the standards under Rules 12 and 56 of the Federal Rules of Civil Procedure. In deciding whether to grant a leave to file dispositive motion, the arbitrator must also consider the time and cost associated with the briefing of a dispositive motion. R-34(b). Dispositive motions can be used to address issues such as: lack of jurisdiction; statute of limitations or repose; judicata or collateral estoppel, waiver or estoppel, failure to satisfy contractual pre-conditions to arbitration. Courts have affirmed the arbitrator’s power to decide the dispute on the basis of a dispositive motion. South City Motors, Inc. v. Auto. Indus. Pension Tr. Fund, 2018 U.S. Dist. LEXIS 88452 (N.D. Cal. May 25, 2018); NFL Mgmt. Council v. NFL Players Ass’n, 820 F.3d 527, 547–48 (2d Cir. 2016) (affirming summary adjudication issued for failure to state a claim). AAA decisions on dispositive motions are not publicly available. By way of comparison, some federal courts have interpreted similar language as requiring parties to show "more than [a] mere possibility" of success and instead show a "strong likelihood" that they will prevail. Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012). Other courts have held that the "threshold for establishing likelihood of success is relatively low" and "the plaintiff's chances of prevailing need only be better than negligible." D.U. v. Rhoades, 2016 U.S. App. LEXIS 10141, at *14 (7th Cir. June 3, 2016). One way to improve your chances of succeeding on the request for leave is by showing that the benefits of granting the request outweigh any perceived disadvantages. You can, for example, explain that allowing briefing on a dispositive motion will streamline the dispute by narrowing the issues in dispute without prejudicing the other party, which will be given opportunity to comment on or respond to the motion. You should tailor this template to the facts of your case. If necessary, reorganize or combine headings based on the specifics of your case. You need not attach exhibits or other evidence to the request for leave. You can (and should) submit this material with the motion itself, should the tribunal grant your request. Keep in mind that even though this is not the dispositive motion, you must set forth the strongest basis for the motion to maximize your chances that leave will be granted. This is your "pitch" and should be a condensed version of the arguments you will make in the motion. For a listing of key content covering AAA Arbitration, see AAA Arbitration Resource Kit. For a related template, see AAA Arbitration Dispositive Motion. For related practice notes, see AAA Dispositive Motions and Dispositive Motions in Arbitration (U.S.).